Gunn v. Howell

¡ASSUMPSIT FOB MONEY HA» AND RECEIVED — PLEA OF PAYMENT TO PLAINTIFF’S CREDITOR UNDER JUDGMENT GARNISHMENT.] RENDERED IN GEORGIA ON PERSONAL SERVICE OF 1. How foreign statute must he pleaded. — As a general rule, where a party claims a right, based, not upon the common law, but upon a statute of a foreign jurisdiction, i-t devolves upon him to prove that statute as a fact; and in pleading, he is required to set out the statute, in order that the court may see that the right claimed is in conformity with it. 2. How judgment of sister State mast he pleaded. — But, in pleading the judgment of a sister State, to which “ full faith and credit” are to be given (O'. S. Constitution, Art. IV, § 1), it is not necessary to sot out affirmatively the facts upon which the power and authority of the court by which it was pronounced depended. 3. Summary proceeding must pursue statute. — Where a special authority, in derogation of the common law, is conferred by statute on a court of general jurisdiction, it becomes, quoad hoc, an inferior or limited court; a compliance with the requisitions of the statute is necessary to its jurisdiction, and must appear on the face of its proceedings. 4. Judicial ascertainment of jurisdictional fact. — Where the jurisdiction of the court to proceed in the summary mode provided by the statute depends upon the existence of a preliminary fact, as where an execution, with a return of “ no properly,” is required before process of garnishment can issue, the record must affirmatively show either the existence of the fact itself, or that the court determined its existence ; but if the court erroneously determine that the fact does exist, its actual existence cannot be collaterally inquired into, and the error does not affect the validity of the proceedings. 5. Georgia statute of garnishment construed.- — The effect of the last proviso to the second section of the Georgia statute of 23d December, 1822, (Prince’s Digest, p. 37,) is to require the issue of an execution, and a return thereon of “ no property found,” before process of garnishment can issue to enforce satisfaction of the judgment. 6. Qfvilwdjm'd in garnishment case consists. — Where process of garnishment is sued out under this statute, to enforce satisfaction of a judgment, the record of the garnishment case consists only of the affidavit and summons, the return of the officer, the answer of the garnishee, and the judgment thereon rendered against him; hut neither the judgment against the original debtor, nor the execution thereon issued, constitutes any portion of the record of the garnishment suit, unless incorporated into the judgment against the garnishee, or made part of the record by bill of exceptions.

Berob from the Circuit Court of Chambers. Tried before the Hon. Nat. Cook. This action was brought by Larkin E. Gunn against Isaac Howell, to recover the proceeds of certain promissory notes, amounting in all to about $2,500, which plaintiff had placed in defendant’s hands for collection. The declaration contained a special count on the contract, and the common money counts. The defendant pleaded the general issue, payment, set-off, former adjudication, the statute of limitations, in short by consent; and his sixth plea was as follows :— “ That plaintiff ought not to have qr maintain his aforesaid action against him, because he says, that after the making of said several promises and undertakings in said declaration mentioned, and before the commencement of this suit, said plaintiff and one Archibald G. Jones were indebted to Malcolm Johnston and Samuel Johnston, as administrators of James M. Calloway, deceased, in a large sum of money, to-wit, the sum of $1,500 principal debt, and $170 interest thereon up to the 7th day of March, 1839, and in the further sum of $20 18 costs, by a judgment recovered in behalf of the said James M. Calloway, now deceased, against said plaintiff and said Archibald G. Jones, on said 7th March, 1839, in the Superior Court of Taliaferro county in the State of Georgia, which said court had jurisdiction of said cause; that said Malcolm and Samuel Johnston, administrators of said James M. Calloway, deceased, afterwards, to-wit, on the 7th day of March, 1842, did make an affidavit, in pursuance of the statutes of the State of Georgia, of the amount of the demand due to them, as such administrators, by said plaintiff and A. G. Jones, and that they were apprehensive of the loss of the same, or some part thereof, unless summons of garnishment issued, and at the same time did give bond and security, as required by the laws of said State of Georgia, conditioned to pay and satisfy all costs which might be incurred by said plaintiff and A. G. Jones, or either of them, in case they discontinued or were cast in their said suit, and also all damages which might be incurred against them for suing out said process of garnishment; that the clerk of said Superior Court of said Taliaferro county, on the day and year last aforesaid, did issue a summons of garnishment, in pursuance of said affidavit and bond so made and given as aforesaid, and the same was afterwards, to-wit, on the 7th day of March, 1842, served on this defendant, requiring him to be and appear before said Superior Court on the first Monday in September next thereafter, to answer on his oath as garnishee of the said plaintiff and A. G-. Jones ; that this defendant afterwards, to:wit, on the 7th day of March, 1843, during the session of said Superior Court, filed his answer in writing in said court, as the garnishee of said plaintiff and A. G. Jones, which-said answer was in the words and figures following,” &c. The garnishee's answer, which is then set out at length in the plea, admits an indebtedness to said Larkin R. Gunn to the amount of $2,011 58, cash in hand, the proceeds of certain notes placed by him in the garnishee's hands, and that he has in his possession certain executions, issued from justices’ courts, on judgments rendered on others of said notes. The plea then avers, “ that afterwards, to-wit, at the same term of said Superior Court, a judgment was rendered against him, on his said answer as garnishee of plaintiff and A. G. Jones, in favor of said Malcolm Johnston and Samuel Johnston, administrators of said James M, Calloway, deceased,” which judgment is then set out in extenso; “ that defendant after-wards, to-wit, on the 8th day of March, 1843, did deposit with the clerk of said court the executions mentioned in his said answer, and specified in said judgment, in pursuance of the order of said court contained in said judgment; and did af-terwards, to-wit, on the 14th day of March, 1843, pay off and discharge said judgment in full, so rendered against him as the garnishee of said plaintiff and A. G. Jones. And this defendant avers, that said Superior Court -of Taliaferro county, in the State of Georgia, had jurisdiction to issue said summons of garnishment, and to give judgment against this defendant on his said answer, as garnishee of said plaintiff and A. G. Jones; that the indebtedness by Mm to said plaintiff, as set forth and contained in his said answer, upon which said judgment was so rendered against him, and which was so paid off and satisfied in full by him, was the very same identical indebtedness as that now declared on and contained in plaintiff’s said declaration; that the entire indebtedness then due by him to said plaintiff was attached and condemned by said Superior Court of Taliaferro county, Georgia, to pay and satisfy said judgment in favor of said James M. Calloway, deceased, against said plaintiff and A. G. Jones, which said judgment, with interest, amounted to a larger sum than was then due by this defendant to said plaintiff; and that said judgment, so rendered in favor of said Malcolm Johnston and Samuel Johnston, as administrators of said James M. Callo-way, deceased, against this defendant, as garnishee as aforesaid, up to the time of its said payment and satisfaction, to-wit, on the 14th of March, 1843, remained in full force and effect, not in the least reversed, satisfied, or made void. And this he is ready to verify by the said record,” Ac. A demurrer to this plea was interposed, and overruled. On the trial, as the bill of exceptions states, “the plaintiff proved, that he'had in the hands of an agent, residing in said Taliaferro county, Georgia, notes, or evidences of debt, amounting to about §2,500 ; that about the year 1840 an agreement was entered into between himself and the defendant, both of whom then resided (and have since continued to reside) in Alabama, that said defendant, who was about visiting Georgia on business of his own, and who was indebted in that State, should take charge of these notes and evidences of debt belonging to plaintiff, and should account to plaintiff for the amount he might collect thereon, and for the amount of the demands he might use in payment of his own debts ; that defendant, in pursuance of this agreement, went into Georgia, took charge of said demands belonging to plaintiff, put the same in the train of collection, and returned home ; that he again went into Georgia, in March, 1842, and succeeded in collecting the sum of §2,261 90 on plaintiff’s said demands, and, after deducting therefrom the expenses of collection and for his services, and the further sum of §144 53 paid to plaintiff before the collection of the money on his said demands, bad left in bis hands, belonging to plaintiff, the sum of $2,011 58,- besides other judgments on which the money could be made, which sum ($2,011 58), upon his return home, he refused to pay over to plaintiff, and to recover which this suit is brought.” The defendant then offered in evidence, in support of his sixth plea, a transcript of the record of the garnishment suit therein referred to, which may be thus described : It commences with the original petition which was the foundation of the action brought by James M. Calloway against Larkin R. Gunn and Archibald G. Jones, on the filing of which a summons was issued, which was returned executed on' Gunn by the sheriff. The defendant’s plea and answer is then set out; after which follow the verdict of the jury, in favor of the plaintiff, and the judgment thereon rendered on the 7th March, 1839. On this judgment an execution was issued on the 14th March, 1839, in which the judgment is described as having been rendered in favor of Malcolm Johnston and Samuel Johnston, as administrators of Calloway, and on which the sheriff made the following return : “ I know of no property subject to the within fi. fa., this 16th March, 1839.” The affidavit made by Malcolm and Samuel Johnston, administrators of said Calloway, on the- 7th March, 1842, to procure the issue of a garnishment on this judgment, and the bond given by them, next appear in the transcript. No writ, or other process of garnishment, appears in the record ; but on a certified copy of the affidavit, issued by the clerk, the sheriff returns that he has summoned Isaac Howell as garnishee to appear and answer at the next term of the court, on the first Monday in September next. In answer to this summons, the garnishee filed a plea on the 7th March, 1843, alleging that he was a non-resident, and therefore not subject to the process ; but the court overruled his plea, and ordered him to answer. The answer of the garnishee, and the judgment thereon rendered by the court, condemning the money in his hands admitted by the answer, are then set out; and the clerk’s receipt for the executions, which the garnishee was ordered to hand over to him, together with Malcolm Johnston’s receipt for the amount of the judgment ($2,011 58), 14th March, 1843, are annexed. The certificates of the clerk and judge, appended to the transcript, seem to be correct, and no objection was raised to them. “ Evidence was further introduced, tending to show that the defendant, while he was temporarily in the State of Georgia in March, 1842, and after the collection of the money by him, and before his return and refusal to pay over the money, was served with a writ of garnishment, as shown by said record. The defendant read in evidence, also, the first section of the third article of the constitution of the State of Georgia, found in Prince’s Digest, on page 909. From the same book was read, on pages .36 and 37, ‘air act to authorize parties plaintiff to issue summons of garnishment in certain cases as in cases of attachments,’ of December 23,1822 ; also, ‘ an act to amend an act to authorize parties plaintiff to issue summons of garnishment in certain cases as in cases of attachments,’ passed December 23, 1822, approved December 20, 1823 ; also, on page 41, an act which was passed on the 22d December, 1834, together with the third section of an act (on page 33) passed 14th November, 1814 ; and all the laws of Georgia, in force, on the subject .of garnishment and jurisdiction. “ Upon this state of proof in the cause, the following charges were severally asked by the plaintiff, and refused by the court:— “ 1. If the jury should believe from the evidence, that judgment was rendered in favor of James M. Calloway; on the 7th March, 1839, and that execution was issued on this judgment on the 14th of the.same month, and was returned by the sheriff in these words, ‘ I know of no property subject to the within ft. fa., this 16th March, 1839’,- — this was not such an issuance and return as was required by the statutes of Georgia, so as to authorize the issuance of garnishment process against a defendant in said judgment in favor of Malcolm Johnston and Samuel Johnston, as administrators of said Calloway. “ 2. If they should believe that a judgment was rendered in favor of James M. Calloway, in March, 1839, and that execution was issued and returned as shown by the record, that such issuance and return would not, after the decease of said Calloway, and the revival of said judgment in favor of Ms administrators (?) and that although a judgment might, under such proceedings, have been rendered in favor of the administrators of Calloway, against the present defendant, — that the payment by him of a judgment rendered under such circumstances would not justify the defendant, nor prevent a recovery by the plaintiff in this suit. %l S. If they should believe from the evidence that the defendant,- at the time of the service of the garnishment, as disclosed by the record, was not a citizen of Taliaferro county, Georgia, then he was not snbjeet to the proceedings by garnishment disclosed by the record, and that the payment disclosed by tbe record would not defeat the right of the plaintiff to recover in this suit. “ 4. If the jury should believe from the evidence that the present plaintiff and defendant, at the time of the service of the garnishment disclosed by the record, wore resident Citizens of Alabama, then the defendant was not subject to tbe process of garnishment therein disclosed ; and if they believe that the record shows all the proceedings had against him as garnishee, that the payment of a judgment rendered under such circumstances would not defeat a recovery by tbe present plaintiff in this suit. “ 5. If they believe from the evidence that the defendant, as garnishee, failed to appear or answer at the court to which he was required to appear and answer, and that no order, scire facias, rule, or other proceedings were then had or ordered against him, — then his appearance and answer at a subsequent term were voluntary on his part; and if he submitted to a judgment under such circumstances, and then paid the same to the parties plaintiff, such judgment and payment would not defeat plaintiff’s recovery in this suit. “6. If the jury believe that a judgment was rendered against the present defendant, and that he paid the same, as shown by the record read in evidence, that such payment will not defeat a recovery by the plaintiff in this suit. “1. That the record read in evidence, with the statutes of Georgia, does not disclose such proceedings, judgment, and evidence of payment, as, would bar the right of the present plaintiff to recover in this action, if they believe that plaintiff and defendant, at tbe time such proceedings were had, were citizens of Alabama. “ The court refused these charges, and then charged the jury, that although there might be irregularity in the proceedings by garnishment shown by the record, yet, if the defendant paid the judgment rendered against him in good faith, such payment would operate as a full defence to this suit, to the extent of such payment, and would to that extent bar the plaintiff's right to recover.” The plaintiff excepted to the charge given, and to the refusals to give the charges ashed; and he now assigns these matters for error, together with the overruling of his demurrer to the sixth plea. Note by Reporter. — This ease was submitted at*the January term, 1851, and was held under advisement until the present term. During the intermediate period, several opinions were, at different terms, pronounced • each of which was afterwards withdrawn, and a rehearing awarded. The arguments of the respective counsel have thus become too voluminous for publication, while it is almost impossible to compress them within the ordinary limits of a brief. The annexed abstracts .present only the main points of the arguments, with the authorities cited. 1. That the demurrer to the sixth plea should have been sustained, because that plea was fatally defective in not setting out the statutes of Georgia under which the judgment against Howell was rendered. The common law is presumed to exist in the different States of the Union, unless shown to have been changed by statute. — Averett v. Thompson, 15 Ala. 78, and numerous other decisions of this court. The process of garnishment is unknown to the common law, and dependent entirely upon statutory regulations; and the statutes, therefore, under which this proceeding was had, should have been set out, either in extenso or substantially, in order that the court might see that they authorized it. When a foreign judgment is pleaded as a bar to an action, it must affirmatively appear that the court by which it was rendered had jurisdiction. — Story's Conflict of Laws, §§ 586, 549 ; 1 Greenl. Ev. § 542; Blair v. Bhodes, 5 Ala. 648; Gaines v. Beirne & McMahon, 3 ib. 114; Puckett v. Pope, 8 ib. 552; Bissell y. Briggs, 9 Mass.' 462; Sumner v. Parker, 1 ib. 19; Wales v. Willard, 2 ib. 120; 5 Blackf. 462; 1 Binney’s E. 25; 1 Bibb’s E. 262; 11 Conn. 500. No presumption can be indulged in favor of the jurisdiction of the Georgia court, because the plea does not aver that it was a court of general jurisdiction ; and even that averment would not be sufficient, because the proceeding by garnishment is strictly statutory, and renders the court, quoad hoc, limited and special. The averment that the court had jurisdiction, is but the allegation of a legal conclusion, and amounts to nothing. The plea is fatally defective in several other particulars, which are presented also by the charges asked, as to the validity and effect of the judgment offered in evidence, in connection with the statutes of Georgia. 2. That the several charges asked should have been given, since the'judgment set up by the defendant, under the statutes read in evidence, was a mere nullity, and its payment therefore was no protection to the defendant. The original judgment was in favor of James M. Calloway, and the execution issued on it was in favor of Malcolm Johnston and Samuel Johnston as his administrators ; while the record does not show that the judgment was ever revived in their names. The execution, therefore, was wholly void. Holloway v. Johnson, 1 Ala. 660; Elliott v. Mayfield, 3 ib. 224; Bacon’s Abr., tit. Executions, 116. Tho return made by the sheriff, even if the execution had been regular and valid, was not sufficient to authorize the process of garnishment. The proceedings against the garnishee are wholly irregular and void, under the statutes of Georgia. No writ, or summons of any kind, was executed on the garnishee ; and the garnishee himself, being a non-resident, was not subject to the process. As the garnishee did not appear at the term to which he was summoned, and no judgment, scire facias, or other order was then taken against him, his subsequent appearance and answer were purely voluntary, and he can claim no right under them. Finally, the judgment against ' the garnishee is rendered in favor of Malcolm Johnston and Samuel Johnston individually, and not as -administrators of said James M. Calloway. The receipts found in the transcript, though certified by the clerk, are not a part of the record, and cannot be looked to for any purpose ; and there was, therefore, no evidence of the payment of the judgment against the garnishee. — Key v. Vaughan, 15 Ala. 499; Mills &, Co. v. Stewart, 12 ib. 90; Hodges & Puckett v. Ashurst & Sons, 2 ib. 301; Savage v. Benham, 11 ib. 50; Ice v. Manning, 3 ib. 121; Brown v. Hicks, 1 Pike, 232; Mayo v. Johnson, 4ib. 613; 20 Pick. 345; 13 Conn. 63. 1. That a judgment of a superior court of Georgia, under the constitution of the United States, has the same credit, validity, and effect in Alabama, as in Georgia ; and nothing can be here pleaded or replied to it, which could not be pleaded or replied to it there. — Hampton v. McConnell, 3 Wheat. 234; Mills v. Duryee, 7 Oranch, 481; 4 Phill. Ev. (cd. 1850), 100; 6 Barb. (S. C.) R. 613. 2. It is apparent from the constitution of Georgia that the superior court is a court of general civil jurisdiction, and the courts of this State-will take judicial notice of the constitution of Georgia. — 4 Phill. Ev. (ed. 1850), 105-6; Dozier v. Joyce,-8 Port. 312; Keith v. Estill, 9 ib. 669; Clarke v. Day, 2 Leigh’s R. 172. 3. It is an acknowledged principle, of universal obligation, resulting from the respect and comity due from one judicial tribunal to another, that a judgment of a court of record of a sister State, in itself, is prima facie evidence of jurisdiction ; and it is not necessary for the party pleading it to set out affirmatively in his plea the facts upon which the power and authority of the court pronouncing the judgment depend. Elliott v. Piersol, 1 Peters, 340; 17. S. Bank v. Merchants’ Bank of Baltimore, 7 Gill’s R. 415-30, and cases there cited. When general powers over a whole subject-matter are conferred by statute on a court of general jurisdiction, although its jurisdiction over the subject-matter must appear on the face of its proceedings, every intendment will be made in favor of the regularity of its proceedings. The distinction is between the exercise of a special authority, delegated by statute to a special and limited tribunal, and the exercise of a general authority over the subject-matter, conferred by statute upon a court of general jurisdiction. — The State v. Lewis, 2 Zabr. 564; Kemp's Lessee v. Kennedy, 5 Cranch, 113-86; Doty v. Brown, 4 Howard’s Practice R. 429; Scott v. Coleman, 5 Litt. 350. 4. Whether the garnishment process was in pursuance of the statute is entirely immaterial; for, although the process may be irregular, yet, if the court had jurisdiction of the process, and rendered judgment against the defendant on personal service, the payment of the judgment is a complete defence. Ho was not bound to move to quash for mere irregularities, nor to reverse for errors, while the court had jurisdiction both of the person and subject-matter. — McGill v. Bone, 13 Sm. & Mar. 592; Hull v. Blake, 13 Mass. 155; 4 Cowen's R. 521; 1 Porter's R. 192; Parmer v. Bullard, 3 Stew. 326; Smith v. Chapman, 6 Port. 365; Daniel v. Hopper, 6 Ala. 296; Duncan v. Wares, 5 Stew. & P. 119; 6 Barb. (S.C.) R. 613; 6 Humph. 43; Goodrich v. Jenkins, 6 Ohio, 44; Arndt v. Arndt, 15 ib. 33; Anderson v. Anderson, 8 ib. 108.